United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TASH HEPTING, et al,

Plaintiffs,

v

AT&T CORPORATION, et al,

Defendants. /

No C-06-672 VRW

ORDER

At a May 17, 2006, hearing, the court invited the parties

and the government to brief two issues: (1) whether this case can

be litigated without deciding whether the state secrets privilege

applies, thereby obviating any need for the court to review ex

parte and in camera certain classified documents offered by the

government and (2) whether the state secrets privilege implicates

plaintiffs’ FRCP 30(b)(6) deposition request for information on any

certification that defendant AT&T Corporation (“AT&T”) might have

received from the government. Doc #130. After reviewing the

submitted papers, the court concludes that this case cannot proceed

and discovery cannot commence until the court examines the

classified documents to assess whether and to what extent the state

secrets privilege applies.

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United States District Court

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Plaintiffs’ principal argument is that the court need not

address the state secrets issue nor review the classified documents

because plaintiffs can make their prima facie case based solely on

the public record, including government admissions regarding the

wiretapping program and non-classified documents provided by former

AT&T technician Mark Klein. Doc #134 (Pl Redact Br) at 5-8. Even

if plaintiffs are correct in this argument, it does not afford

sufficient reason to delay deciding the state secrets issue.

The government asserts that “the very subject matter of

Plaintiffs’ allegations is a state secret and further litigation

would inevitably risk their disclosure.” Doc #145-1 (Gov Br) at

14. If the government is correct, then “the court should dismiss

[plaintiffs’] action based solely on the invocation of the state

secrets privilege.” Kasza v Browner, 133 F3d 1159, 1166 (9th Cir

1998). Moreover, until the applicability and reach of the

privilege is ascertained, AT&T might be prevented from using

certain crucial evidence, such as whether AT&T received a

certification from the government. See Gov Br at 16-17. See also

Kasza, 133 F3d at 1166 (noting that a defendant might be entitled

to summary judgment if “the privilege deprives the defendant of

information that would otherwise give the defendant a valid defense

to the claim” (quoting Bareford v General Dynamics Corp, 973 F2d

1138, 1141 (5th Cir 1992)) (emphasis and internal quotation marks

omitted)). The state secrets issue might resolve the case,

discovery or further motion practice might inadvertently cause

state secrets to be revealed and AT&T’s defense might be hindered

until the scope of the privilege is clarified. Hence, the court

agrees with the government that the state secrets issue should be

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United States District Court

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addressed first.

To address this issue, the government claims that the

court should examine the classified documents, which apparently

“disclose the sources and methods, the intelligence activities,

etc, that could be brought into play by the allegations in

plaintiffs’ complaint.” Doc #138 (5/17/06 Transcript) at 34:15-17. 

Because the government contends that “the primary reasons for

rejecting Plaintiffs’ arguments are set forth in the Government’s

in camera, ex parte materials,” Gov Br at 13, the court would be

remiss not to consider those classified documents in determining

whether this action is barred by the privilege. And although the

court agrees with plaintiffs that it must determine the scope of

the privilege before ascertaining whether this case implicates

state secrets, Pl Redact Br at 13-14, review of the classified

documents is necessary to determine the privilege’s scope.

Plaintiffs also contend that “the government must make a

more specific showing [in its public filings] than it has before

this Court may be required to review secret filings ex parte.” Id

at 10. But the government, via Director of National Intelligence

John D Negroponte, has stated that “any further elaboration on the

public record concerning these matters would reveal information

that could cause the very harms my assertion of the state secrets

privilege is intended to prevent.” Doc #124-2 (Negroponte Decl), ¶

12. See also Doc #124-3 (Alexander Decl), ¶ 8. Although the court

may later require the government to provide a more specific public

explanation why the state secrets privilege must be invoked,

Ellsberg v Mitchell, 709 F2d 51, 63-64 (DC Cir 1983), the court

cannot, without first examining the classified documents, determine

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whether the government could provide a more detailed public

explanation without potentially “forc[ing] ‘disclosure of the very

thing the privilege is designed to protect.’” Id at 63 (quoting

United States v Reynolds, 345 US 1, 8 (1953)).

Plaintiffs further assert that adjudicating whether AT&T

received any certification does not require the court to review the

classified documents. Specifically, plaintiffs rely on 18 USC §

2511(2)(a)(ii)(B), which states in relevant part (emphasis added):

No provider of wire or electronic communication service 

* * * or other specified person shall disclose the

existence of any interception or surveillance or the

device used to accomplish the interception or

surveillance with respect to which the person has been

furnished an order or certification under this

subparagraph, except as may otherwise be required by

legal process and then only after prior notification to

the Attorney General or to the principal prosecuting

attorney of a State or any political subdivision of a

State, as may be appropriate.

Plaintiffs claim that the phrase “except as may otherwise be

required by legal process” means that “if the AT&T defendants are

claiming that they have a certification defense, then ‘legal

process’ would require the disclosure of the fact of that

certification in the ordinary course of litigation.” Pl Redact Br

at 8-9.

This argument fails, however, because the government’s

“state secrets assertion ‘covers any information tending to confirm

or deny’ whether ‘AT&T was involved with any’ of the ‘alleged

intelligence activities.’” Gov Br at 17 (quoting Doc #124-1 (Gov

Mot Dis) at 17-18). Because the existence or non-existence of a

certification would tend to prove or disprove whether AT&T was

involved in the alleged intelligence activities, the privilege as

claimed prevents the disclosure of any certification. And because

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the “legal process” could not require AT&T to disclose a

certification if the state secrets privilege prevented such

disclosure, discovery on the certification issue cannot proceed

unless the court determines that the privilege does not apply with

respect to that issue.

Finally, plaintiffs claim that they should be able to

review the classified documents alongside the court. Plaintiffs

note that due process disfavors deciding this case based on secret

evidence and they contend that “the Court should proceed

incrementally, examining only the least amount of ex parte

information when — and if — this becomes absolutely necessary.” Pl

Redact Br at 3. Although ex parte, in camera review is

extraordinary, this form of review is the norm when state secrets

are at issue. See Kasza, 133 F3d at 1169 (“Elaborating the basis

for the claim of privilege through in camera submissions is

unexceptionable.”). See also Black v United States, 62 F3d 1115,

1119 & n6 (8th Cir 1995); Ellsberg, 709 F2d at 60 (“It is well

settled that a trial judge called upon to assess the legitimacy of

a state secrets privilege claim should not permit the requester’s

counsel to participate in an in camera examination of putatively

privileged material.”). And for the reasons stated above, review

of the classified documents is necessary here to determine whether

the state secrets privilege applies.

Plaintiffs also contend that a statutory provision, 50

USC § 1806(f), entitles them to review the classified documents. 

Pl Redact Br at 4. Section 1806(f) provides in relevant part:

//

//

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[W]henever any motion or request is made by an aggrieved

person * * * to discover or obtain applications or orders

or other materials relating to electronic surveillance 

* * * the United States district court * * * shall,

notwithstanding any other law, if the Attorney General

files an affidavit under oath that disclosure or an

adversary hearing would harm the national security of the

United States, review in camera and ex parte the

application, order, and such other materials relating to

the surveillance as may be necessary to determine whether

the surveillance of the aggrieved person was lawfully

authorized and conducted. In making this determination,

the court may disclose to the aggrieved person, under

appropriate security procedures and protective orders,

portions of the application, order, or other materials

relating to the surveillance only where such disclosure

is necessary to make an accurate determination of the

legality of the surveillance.

Plaintiffs contend if the court determines that it must review the

classified documents, this provision indicates that the court

“should do so under conditions that provide for some form of

appropriate access by plaintiffs’ counsel.” Pl Redact Br at 4.

The government and AT&T contend that this provision is

inapplicable here because “[p]laintiffs’ claims are based on their

contention that the alleged surveillance activities should have

occurred under FISA, but allegedly did not, whereas the review

available under section 1806(f) is available only when electronic

surveillance did, in fact, occur ‘under this chapter.’” Gov Br at

11 (citation omitted); Doc #150 (AT&T Redact Br) at 10. Even if

this provision applies to the present case, it does not follow that

plaintiffs are entitled to view some or all of the classified

documents at this time. Section 1806(f) requires the court to

“review in camera and ex parte the application, order, and such

other materials relating to the surveillance” when determining

whether the surveillance was legal. Only after such review may the

court disclose the protected materials to the aggrieved person to

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the extent “necessary to make an accurate determination of the

legality of the surveillance.” Hence, § 1806(f) does not provide

plaintiffs with a present right to view the classified documents.

The court is mindful of the extraordinary due process

consequences of applying the privilege the government here asserts. 

The court is also mindful of the government’s claim of

“exceptionally grave damage to the national security of the United

States” (Negroponte Decl, ¶ 3) that failure to apply the privilege

could cause. At this point, review of the classified documents

affords the only prudent way to balance these important interests.

Accordingly, because review of the classified documents

is necessary to determine whether and to what extent the state

secrets privilege applies, the court ORDERS the government

forthwith to provide in camera and no later than June 9, 2006, the

classified memorandum and classified declarations of John D

Negroponte and Keith B Alexander for review by the undersigned and

by any chambers personnel that he so authorizes.

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

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